Relations of the Union and the member states 4 – Citizenship

A thing that affects a bit what I wrote in previous post is a question of a citizenship. If a federation should arise in Europe, a question of federal citizenship will arise. This is a question unknown to present European unification; the Lisbon Treaty speaks about the citizenship of the European Union but the European Union is not a state and therefore this thing is actually unreasonable in the treaty (an international organization cannot have its citizenship; with other words, nobody can be a citizen of an international organization).

In this post, I will be interested in a question which should be a relation between the citizenship of the European federation and the one of its member states for foreign persons, that is the rule of naturalization; I will not deal with that how the particular requirements for obtaining the federal citizenship should be, it will be a matter of a specific law and it can vary in the time. So, starting possibilities are three: a) the federation will give the federal citizenship and the citizenship of the member states will be derived from it; b) the member states will give their citizenship and the federal citizenship will be derived from it; c) the federation and the member states will give their citizenship independently on each other. The first case would mean that the member states would be dependent on the federation in giving their citizenship, the second case would mean that the federation in the same thing would be dependent on its member states.

The citizenship of the federation can be defined as an automatic counterpart of the citizenships of the member states, that is to say that everybody obtains automatically the federal citizenship who obtained the citizenship of some member state of the federation. This way the situation will have to be realized in the moment of arising of the federation (and it will have to be written in the federal constitution – in section Final and transitional provisions; the federal citizenship cannot be given otherwise to the Europeans in the beginning) but the question is whether it should be valid as a permanency. If we admit this version, it would mean that the member states will be who would decide about the membership of the federation – because who would accept their citizenship would obtain in addition also the citizenship of the federation. It would mean that the federation would not have any control over it who obtains its citizenship. If we look around if some federation has such (or similar) method of giving its citizenship, we find one and just that one which usually is a pattern for the federalists in Europe – Switzerland. We can read in chapter 37 of its constitution that anyone who is a citizen of a commune and of the Canton (= member state) to which that commune belongs is a Swiss citizen. It looks at first appearance that the federation is held in captivity of its member states (“cantons”), the situation is however not so easy how it can look from the provision of this article. For the next article – 38 – brings a complement: the federation shall legislate on the minimum requirements for the naturalization of foreign nationals by the Cantons. So we can see that the federation rejects to be fully dependent on its member states in this matter and that it specifies to its member states at least partially what should be the regulations according to that they give their citizenship. It is logical because in other case the federal citizenship would not have the same importance at all its holders – some people could obtain the federal citizenship more easily than the others due to some member states, and inequality would arise. The consequence of this concept however is that neither the federation nor the member states can freely decide about it who they accept as their citizen – each side restricts free activity of the other.

Other concept can be found in the second of the patterns for the European federalists, in the United States of America (a typical European representative of this concept is Austria). It is written in section 8 of article 1 of the USA constitution that the federal parliament shall have power to establish an uniform Rule of Naturalization, then in amendment 14 is written that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Here, unlike in Switzerland, the member states are subordinate to the federation in the question of the citizenship; no member state cannot give its citizenship to anybody who had not already obtained the citizenship of the federation. The member states cannot actually influence at all who will get their citizenship because they must give it to every citizen of the federation who will settle in them. The member states are weaker here than the federation in the first concept because in the first concept, the federation gives its citizenship only to that one who has obtained the citizenship of some of its member states, but itself can order to its member states what should be the minimal requirements that an applicant for their citizenship has to meet – on the other hand, in the second concept, the member states cannot order nothing to the federation.

We are coming to a question now, how this matter should be regulated in the European federation – whether to select the concept where the citizenship of the federation should be preferred to that one of the member states or on the contrary the concept where the citizenship of the member states should be preferred to that one of the federation or whether another concept should be adopted.

I assume that the concept which is in the United States of America (and in European federations, maybe except in Bosnia and Herzegovina) is inappropriate for Europe. I will cite from the article A European citizenship in a European federation published in the web Federal Union: Why do different countries have different political systems? Because the political system is not simply a narrow literal expression of the rules by which a country is governed. It is an expression of the culture of a country. It shapes that culture too. But then most cultural phenomena both influence and are influenced by the societies in which they exist. If the political system is different one country from another, so is the citizenship. Citizenship is part of that political system, it is a reflection of it. Yes, Europe forms not one cultural nation like the USA or Austria, on the contrary - it is very diverse in culture and this diversity ought not to be disturbed by the European federation (see my proposal of the preamble of the federal constitution). Giving its own citizenship according to own deliberation belongs to cultural distinction of every European state, none of them ought to be compelled to accept as a citizen everybody who will move in its territory.

However, I want not to say with it that the European federation should adhere to the concept of Switzerland or even the intergovernmental one of present EU (where the European citizenship is merely symbolic without any real signification) – the federal citizenship cannot be only an adjunct to the citizenship of the member states as the author of a “federal” European constitution proposes in its article 4. In my opinion every state (and federation is a state) should have full control over it to whom it gives its citizenship. Therefore it seems fatuous to me that a citizenship of the federation exists but the member states in fact decide on it, though maybe (as in Switzerland) according to instructions of the federation. I believe on that account that the European federation and its member states should give their citizenships independently on each other and only one limitation should be that the member states may not give their citizenship to anybody who has not the federal citizenship.

One thing follows from this: in such arrangement some persons will certainly occur who will have the citizenship of the federation but not the one of any member state, either temporarily because they did not yet meet conditions for obtaining the citizenship of the state in that they settled, or constantly because they will not aspire after it – such possibility cannot be excluded, on the contrary, it is likely. The question is whether it is undesirable or it is not. I believe that it can make some problem chiefly in social domain but the people without citizenship of any member state will live in a concrete member state and will therefore follow its laws; in addition federal rules on employment conditions and social care for employees of federal administrative will have to exist and the people lacking citizenship of any member states can be add to people in that category in case of necessity. There is also no need of having fear that basic human rights would be removed from people without citizenship of any member state and with only federal citizenship – these rights will be protected by a bill of basic rights which will be part of the federal constitution and which will be in force in all federation territory and valid for all citizens of the federation regardless of their member state citizenship.

The concept seems to me really the best that both the federation on the one side and the member states on the other side will give their citizenship independently on each other regardless of that this concept is (maybe) unusual. Such concept is in force perhaps in Bosnia and Herzegovina too, I am of that opinion from the Law on Citizenship of Bosnia and Herzegovina and the Law on citizenship of Republika Srpska (one of its member states, so called „entities“). I judge from these two laws that citizenship of any of its member states is not a condition for naturalization in Bosnia and Herzegovina nor citizenship of Bosnia and Herzegovina is not a condition for acquisition of citizenship of any its member state (“entity”). It is written that a citizen of a member state (“entity”) becomes herewith a citizen of the federation but I did not find a converse provision in neither mentioned law. It is therefore possible that conditions in Bosnia and Herzegovina are the same as those which would be in the European federation if the rules about its citizenship that I have described would be enforced. From the perspective of the constitution, these rules would not demand any mention about the member states citizenship except of that I have already talked about, namely that the member states will not be able to give its citizenship to anybody who holds not the federal citizenship, about the citizenship of the federation only that giving the citizenship of the federation will be fully in power of the federation (maybe with addition that the federal citizenship can be obtained by birth, descent, adoption, marriage and naturalization).

Relations of the Union and the member states 3 - Free movement

I tried to concentrate chiefly on the issues of the European federation's acting towards outside in previous two posts. Now (not only in this post) I will discuss the matters by which the European union will act as a uniform state towards inside.

I will begin with the matter of internal borders. The borders between the member states cannot be abandoned naturally – then the member states would disappear and the European union would become a unitary state – but they must be free pervious in a federation. The current mode of the movement between the member states of the European union is (as in the main everything) determined by an international treaty from that the member states as independent states can withdraw; but if they want to restrict the movement in its borders, they need not illegally withdraw from the treaty, the treaty itself makes it possible and the member states exploit it, as we know. But it is not possible in federation that the member states restrict transit of their borders by whatever reason. Therefore the federal constitution has to contain a provision that ensure free permeability of the member states borders. Actually, no federal constitution which I have read contains some similar provision because this matter is considered self-evident – but Europe is a special case; only the constitution of Germany and Switzerland contains a provision that all the citizens of the federation have freedom to move and stay in entire area of federation – but that is a bit different thing, it ensures that no member state can avoid other than its own citizens to stay in its territory. Such similar provision should be also in the European federal constitution but in other place, in basic rights chapter which I will discuss later.

The matter of the free movement between the member states affects three other matters – free movement of persons who are not citizens of any member state, the rights of citizens of one state in another state and prosecution of persons who have committed a crime or an offence in one member state and escape in another state.

The first matter – free movement of foreigners in territory of the federation (that I have already mentioned in previous post): If inhabitants of the member states can freely go over the borders of their states, it must naturally hold also for all, not only the citizens but also those who have neither the membership of the federation nor of any member state. That is, if somebody is admitted in the territory of the federation, he can move and stay in all its territory. It is obvious from it that no member state can decide on foreigners admittance to the union territory separately because it would mean that one member state would decide who can be present in other member states territories. Uniform rules of admittance to the territory of the federation have therefore to be and the federation will be who ought them to execute. Determining the rules on banishing from the union territory and their executing has to be also in power of the federation. At this matter, I have been recalling repeatedly the condition of today and the question, whether this matter cannot be put in the hands of the member states acting together. That is naturally possible as it is roughly done today, but it is necessary to realize that the current like-union is an attempt to solve the quadrature of the circle, that is to say how to unite Europe so that the member states need not to unite (unity without unification). It is not possible to imitate the present arrangement for the future – all what applies to entire union and what transcends the needs or ability of one member state needs to be given over to the federation.
The second matter – a status of the citizen of one member state in another member state – could be arranged sufficiently with a list of basic rights holding in all Union territory which will be part of federal constitution as I have already mentioned above.

The question of prosecuting persons who have committed a crime or an offence in one member state and escape in another state – the third matter – is certainly a delicate matter, because the criminal law ought not to come under the domain of federal activity; every member state itself should determine its own rules of its citizens acting and persecute broking these rules. It is easy for inhabitants of whatever state to avoid a punishment by escape to another state in federation where is free movement of persons. The solutions are three in the main: either the authorities themselves of the states where the crime or offence was committed will search for perpetrators in other member states or such searching will be put in the hands of the federation or finally the procedure will be the same as today, i. e. the intergovernmental way. The current manner is the least appropriate for it is slow and complicated. Its only advantage is that it has meticulous respect for sovereignty of individual states, such solution is nevertheless hardly consistent with existence of the federation. The other two ways of solution of this matter mean that the member states will accept that the federation will assist in this sphere, concretely in a form of a federal investigation authority. Such a federal organization would probably work similarly to current Interpol (ICPO) – to investigate persons who committed a crime or an offence in a member state but escaped in some other member state, but unlike INTERPOL with a power to exercise it in all union territory independently on the member states. In addition to that, such federal organization will have to be created in every case – if federal laws arise, crimes and offences against them naturally will arise and some federal body will have to investigate them (and to punish them); and if we will have this body with all-federation sphere of activity, it is natural that it will serve to the member states in cases that exceed their boundaries but are in their competence.

There are also other matters in criminal sphere which can be in competence of the federal investigation authority (roughly it what deals EUROPOL today with) but they should be mentioned in another place of the federal constitution and therefore I will not discuss them now.
So the conclusion should be from the point of view of the constitution that the European federal constitution ought to guarantee free movement between the member states in all cases (no member state will not be competent to close its borders, not even for a limited time) and the constitution should determine that the federation will create an institution that will organize the investigation for persons prosecuted in some member state and stay somewhere else in the union territory. The precise wording of the constitution text I will state in the end of this section “Competencies”, as I wrote earlier.

Relations of the Union and the member states 2 - Foreign policy

There are also other things following the provision on foreign policy that was written in the previous post. I will discuss them now.

If it is said that the federation is one entity towards the outside, many consequences go out from that which need to be mentioned explicitly, I believe.

The European federation will act with non-members states and will represent them because the member states will not be allowed to have their own foreign policy. But the same principle should be applied also in the cases where the member states of the European federation need not act with any states but the situation will be that they act outside their own territories. What I have in mind the international seas are. It is an area where the EU member states can get in contact with non-member states (fishery) and some conflicts can easily occur. There is another area similar to the international seas where interests of various world states can collide - the space out of the Earth. For that reason the European federation should be only one acting also there. It can be seen needless maybe because the space research is an expensive matter and almost no European state can afford it independently (that is the reason why the European Space Agency arose) but in spite of that the greatest states of Europe or a few of them together could make their space activities though they are demanding.

Nonetheless I will write on some matter now which can seem contrary to that what I have written above. The European federation member states will not be allowed to act independently outside the union; but in some cases I believe it can be allowed. The spheres of independent acting of the member states which I have in mind are culture, sport and science. The culture is an expression of European diversity and need to be united by the European federation in no way, the same applies to the sport. These two fields are not connected with a power, so any collisions with some non member states come not into consideration (at least I believe) - therefore the European federation members can be allowed to act independently also with non member states in this domain. The same is a matter of the science although the federation can have more interests in it; for many science projects (especially in nature sciences) are so expensive that they need to be accomplished with the powers of more than one member state and at least a coordination of the federation would be appropriate. But where the powers of the member states are sufficient, they could act with non-member states in this field. The sport is the third domain where the member states could deal with non-member states. Today, for example, Poland and Ukraine arrange together the world football championship, the EU member with non-member. In current EU it does non matter because the European union is not a union and its members are independent states. However, I believe the member states could act like this also in a true union and Poland could arrange the above mentioned championship with non-member Ukraine (or other non-member state) in such circumstances too. Why I believe that the European federation member states can act independently outside the federation in this case? The diversity of Europe manifests itself most in culture and related fields and establishing the union in Europe ought not to change it. The states of Europe - as I have already written before - got very accustomed to their independence and it is not necessary to take it away from them in all cases. And I believe that the common European Olympic expedition under the EU federation flag, for example, is not necessary for Europe's welfare. It is obvious to me that the federalists would well welcome it in the present time but the national politicians would be able to agree with it but the foreign policy, for example, would preserve by themselves at the same time. And there is more necessary a real union than mere symbols of unity. However, back to the member states independent action outside the Union.

The culture, sport and science are not about power, so I think these matters need not to be managed by the Union outside the Union. However, some difficulties can occur also in this field. Let us imagine that Poland would want to arrange the football championship not with Ukraine but with Belarus and the European Union will have bad relations with it and sanctions against it (hypothetically). Then: the independent acting of Poland would be in accordance with the federal constitution in the sport field but not in accordance with the federation interests. Therefore the federal constitution should contain a statement that the member states can act independently in the culture, science and sport matters outside the Union if it is not in contradiction with the interests of the Union; and also the member states ought to inform the Union about their intentions and approach if they will act outside the Union.

If only the European federation can have its foreign policy and the member states cannot have it (except of the matters mentioned above), only the federation can also determine economic relations between the Union and the foreign states. I believe that I have not to develop it much because the authorities of the EU negotiate with the third countries in trade matters already today (although they need a final consent of the member states governments today). The European federation ought to be one state towards the outside and therefore the member states cannot act independently in such important matter like business and trade negotiation and contracts. Also determination of customs duties amount and of prohibition of certain goods import belongs to this matter; the federation will also naturally be able to determine rules for export.

The matter that also ought to be transferred in the power of the federation is the guard of the outside border of the federation. This matter needs a federal regulation because the uniform territory of the federation (with free movement of persons (about it in another post)) cannot be guarded by different states (passing by that not all member stats will be border states) - federal rangers can on the other hand operate in whatever sector of outside border in the case of need. In addition, guarding common borders is a normal federal competence.

What belongs closely to the mentioned matter is a matter of "visitors" of the federation. That is to say only the federation can determine who can enter the federation territory, the member states cannot do it. One of fundamental features of every federation is that there is free persons movement among the member states - in that case it would be at least peculiar if some border states should decide who alien can stay in other member states territory. Beside that this matter is related to the foreign policy and that is the exclusive matter of the federation. Another way is also possible: the federation will determine the rules of admission to the union territory and the member states will execute them. But it is untypical for federal arrangement; it corresponds rather to present intergovernmental way how the EU works now. But although the second way can be employed, the principle should be valid that if some power was put in the hands of the federation, the federal authorities should accomplish the power. The contrary way would mean that the federation would be dependent on its member states in its own policy. That I do not consider to be suitable for Europe (though this principle works in some federations like in Germany for example); nonetheless, I will discuss it more in another post dealing with federal bodies.

Now, I will stop and finish this post with the words that other federation competencies will be discussed by me another next time.

Relations of the Union and the member states 1 - Foreign and military policy

In this chapter the constitution will determine the relations between the Union on the one hand and the member states, that is to say competencies of the federation. Whereas my previous posts were relatively indisputable (although it is possible to quarrel on everything) many (potential) readers of this chapter can easily dissent from many (or even all) of submitted suggestions because the European states independence is a very delicate matter, so I will explain them as well as can be (from my point of view) – however, if someone dissents from the European federation concept itself nothing can be explained to him at all.

I will discuss first more common matters about federation competencies. How large should be their extent? There are competencies which every federation must have to be a federation but before I will deal with them concretely I will refer first to the principles of their arrangement in the federal constitution of Europe. There are two types of federations, those that arose from below and those that arose from above. The first type represents such a federation that arose from the originally independent states which voluntarily have ceded part of their competencies to the federal state. The second type represents such a federation that arose from originally unitary state which has given some state rights to its parts. Examples for the first type are the United States of America or Switzerland, for the second type Belgium. The first type differs from the second one in the fact that the originally independent states joined in a common state but their independence was so dear to them that they ceded to the common state only the most necessary competencies so that the common state may work at all. In this type of federation the federal state is more weak initially (and its competencies acquires only gradually) than in the second type where the federal constitution is written for the sake of strong federal state and less competencies and less independence is left to the member states in this case than in the first type. The European states have very strong feeling for their independence, all of them have never been together in a common state except some states which were parts of greater states today non existing (like the Austrian empire). Hence it follows that the European federal constitution should be more like the USA constitution which came out of the states rights protection than the constitution of Germany where the competencies of the federal state are very extensive (assuming that the so called concurrent legislation (the states make laws till the federation do the same in certain areas) is in fact additional competencies for the federation); and I do not mention the constitution of Austria where the competence of the federation is even greater than in the German case.

Then: the competencies of the federation and the member states can be set in a different way in the federal constitution. First, only the competencies of the federation are enumerated and the other not enumerated remains in the competence of the member states. Second, only the competencies of the member states are enumerated and the not enumerated rest is in the federal competence. Third, both the competencies of the member states and of the federation are enumerated. The third way seems to be the most exact division of the competencies. However, it is not. All human activities and all possible state competencies cannot be listed in the constitution. Besides, nobody knows which activities will emerge in the future and will have to be regulated by the state (for example, before fifty years, nobody knew that something like a cloning will be possible some day). The best way is in fact the first one – the competencies of the federation are strictly done whereas the competencies of the member states are open. That means: if some new matter operated by the state occurs it goes automatically to the member states because it will not be listed among the federal competencies in the federal constitution. If it is proven that it is better to transfer this newly occurred competencies to the federation, the federal constitution will have to be changed, that is to say the member states will have to agree with the transfer of their competencies to the federation. That is fully in accord with the principle of federalism which says that the member states are independent if their independence is not restricted by the federation, in other words the member state have all competencies and all power that have not transferred to the federation.

So, now I will proceed to concrete provisions of the federal constitution of Europe. In first place the thing will stay that is the most important attribute of every federation – the federation is a single entity towards the outside. That means the one – the foreign policy has to pass over to the federation completely and the member states cannot act independently outside the federation. It is self-evident, there in no federation in the world where it is otherwise; all the same this is the greatest problem for Europe – the European states do not want to abandon their foreign policy; though it is a core matter for whichever form of a political union. I believe that the main fault falls at the European states politicians because they want not to give up their power. We hear how the national interests must be protected all the time but let somebody say to me: what for any European nation needs its foreign policy? Will the Spaniards stop to be the Spaniards if they do not have their foreign policy? Will the Poles stop to be the Poles without their foreign policy? Cannot the Swedes remain the Swedes without their own foreign policy? (And so on, naturally.) As a matter of fact the national and cultural diversity of Europe has nothing to do with the foreign policy of individual European nations; no European nation needs in fact its own foreign policy for its preservation, if it wants to have it, that is an expression of its thirst of excessive might or glory. In any case the European federation cannot exist without its foreign policy and with the member states having their own foreign policy – it is one of the most important things in the construction of the federal state of Europe.

Another matter belongs closely to the foreign policy, it can be said it is its integral component – the military. It would be absurd if the European federation member states should preserve their forces – an armed confrontation among them comes not into consideration (they enter the federation among other thing to avoid mutual wars) and no reason to have the forces exists in that case. The only one who can dispose of the armed troops in the European federation is the federation itself of course, it will use them according to its foreign policy. Nevertheless the troops and the weapons have to be spaced out somewhere; and it is obvious that it cannot be nowhere but in the territories of the member states. This may be for some of the member states people difficult. First because “foreign” troops should be spaced out in (almost) every member state (it is impossible to separate the soldiers of one common army strictly according their home states so they stay not in other member states) – but thus cannot it be in a federation: how can the other member states and their inhabitants of the same federation taken for foreign? It is impossible to enter the European federation with this outlook. The other difficulty for someone: the federal army must have some areas where it preserves its weapons and other technology and where it exercises its soldiers, i. e. military areas. The European army can easily use such current areas of the member states armies but the federation is the only one who will decide about the army in the future and therefore also about the land use for military purposes. However, to use its land is a sensitive matter for every state, so the federal constitution should respect it (a principle that the federation will care about the opinion of the member states in selecting the land for military purposes).

In any case, there is one more problem in common army matter and it is much greater than the previous ones, however it concerns the federal constitution only marginally. It sounds simply: NATO. Some of the present EU members are members of NATO, some of the EU members are not. What to do with it? Should the current NATO member states give up their membership in the military alliance by joining to the federal EU or on the contrary the current NATO non-members should join also the NATO by joining the European federation? And (so called) neutral states? Now, when no European federation exists, it is a great problem for all European defence projects (how to create common EU forces if not all EU members are NATO members). But the answer is simple in the case of the European federation. If the present independent states join the federation and only the federation can dispose of the military, the member states of the European federation cannot have own foreign policy and their own forces and therefore no member state can be member of any military alliance including NATO.

The question arises now whether the federation itself should join NATO or not. In the beginning it will be not a member naturally, because the treaties were signed by the present European states, no by any European federation, the membership of the current states cannot be automatically transferred to the federation. So, should the European federation be member of NATO? I do not think so. I know that many people in Europe see NATO as in integral part of European existence. But they have forgotten why NATO arose and in what circumstances it was established – Europe was destroyed after the second stage of its civil war (traditionally called WW2) and occupied by the United States of America and the Soviet Union and the states being not under the Soviet influence were so weak that they could not defend themselves without a foreign help. For that reason NATO is a witness of weakness, division and unindependence of Europe. Today, there is absolutely different situation – the invasion of the USSR threatens today not, even USSR itself exists not and the main thing is that by creating the federation, the military power of all member states will join together and Europe will not be military unindependent more. Europe like a federation will make do without the USA troops well and the USA military protection of Europe will be needless. All the same I believe that already today NATO serves not for the benefit of Europe but of the USA, the European member states support the USA wars in the world – that is the main purpose of NATO today; the USA military presence in Europe makes more an impression of an occupation than a help. So the summary is evident: NATO arose like a USA military protection of weak and divided Europe against the military strong Soviet Union; after the rise of the European federation Europe will not be weak and divided more and the Soviet Union exists also already not, so the future existence of NATO will be superfluous. Because a membership of the federal European union in such military organization is a weighty thing, I believe that in the federal constitution a provision should be that the accession of the EU to some military alliance requires the consent of the federation citizens (something similar what is in the Swiss constitution (article 140)).

There are still many other issues having to be discussed on the European federation competencies but this article would be too long containing all of that so I have divided the topic in more articles and this is the first one of them. So, to be continued next time (my suggestion of the pertinent constitution text will be in the last part).

General provisions

-->Section General provisions is a section that usually stands near the beginning of constitution texts and is different from a preamble. The section contains such general informations like a name of the state, its capital, its state symbols, statements about the state's territory, a general character of the state and similarly. These things I consider to be appropriate to mention in this section of the European constitution.

First thing will be a name of the European federal state. What do we want to be the name? There may probably be several possibilities, the most frequented suggestion - I suppose – is the name “The United States of Europe”. As I was able to find, the first one who used this name was French writer and politician Victor Hugo at the International Peace Congress in 1849, so the term has already its history. The present name (The European Union) can also be used and besides other names can be invented; The European Federal Union, The Federal Republic of Europe, The European Federation, The European Commonwealth or The Commonwealth of Europe come into consideration from a pattern of world's federations official names (Switzerland has an unusual name in German language – The “Oathfellowship” what is inapplicable for a European federation). Which of these names is mostly suited for a European federal state? The United States of Europe? The text For a federal pact among Europe's founder member states requires explicitly the newly founded federal state to be called so, also many other authors join this name with a European state. I will write it directly: I consider the present name “The European Union” as fully suitable for future federal state in Europe. Some objections can be raised the name is the name of the present union – but that is more an alliance than a union in fact and the word “union” not corresponds to the present condition, it is rather an optimistic belief in future unity. The main reason why I prefer present name before the United States of Europe is that Europe needs not to “ape” the United States of America. The American federation choose some name in its beginning but there is no reason the European federation must adopt the same name. Must every federation in the world be called “The United States of ...”? It suffices that Mexico has already imitated the USA (“Estados Unidos Mexicanos”, literally “The United Mexican States”), Europe let go along its own way. From the other potential names – The Commonwealth is unusual for Europe, one federation of the world (Australia) holds this name already; besides there is also a problem to translate accurately this term to other languages. Then, we can take into consideration other names, the federal republic and the federal union. I do not like the term “federal republic”, it sounds few as a name for a union, though there is the attribute federal near it. The last question is whether the attribute “federal” should be by the name “union”. If the present alliance should transform in real union, an addition of the word “federal” would seem appropriate. All the same I do not favour it; if some true union of the European states (not only international alliance like the present “union”) arises, its substance will be automatically federal and no extra accentutation will be necessary.

Besides the name of union's form itself, I deliberated how to cite the name in the constitution. It should be mentioned right in the first place of the General provisions. But I did not invent any suitable formulation (“The name of the union is The European Union” sounds not comfortable for me). At last, I found most proper to state the union name already in the Preamble. So I adjusted the text of the previous article about the Preamble and its end reads now:

… adopt this Constitution of the European Union.

If the name of the union is not the first statement of the section General provisions then a statement about democratic substance of the European Union should stand in first place. Also a statement that the European Union is a federation can be placed here. The first article should thus run:
The European Union is a federal democratic state based on the will of the people. The people is the only source of state power.

Next issue that is suitable to be included in the General provisions is the territory of the union. In the Swiss constitution which is one of patterns for the European constitution, the member states of the federation are enumerated. Our second pattern, the USA constitution, contain nothing similar, it is however contained in a constitution of other European federations, first of all in the German and Austrian constitution. I consider it suitable also for the European constitution and I will explain why. I will deal with it only in other place but I write now that the constitution will be able to be changed only by the people's consent, that is by a people vote (a referendum). If member states are enumerated in the constitution it means it is impossible to admit any new state to the union without consent of the people of the union. It will result in two consequences: on one hand, it will not be possible to admit to the union a state what would the people believe about that it would be heterogeneous in the union and would damage the union. The second consequence will be that every enumerated member state will have its existence guaranteed by the constitution of the union. Any attempt to divide any member state or to join it to another would be anti-constitutional if not approved by the people of the union and the federal bodies would be able to intervene. The enumeration of the member states means not that new member states cannot be established by secession of the current ones but it must however occur in democratic way so that people of other member states may be able to agree to it. This is the way that in 1979, the state Jura came away from the state Bern and was admitted to the Swiss federation as a new member state with approval of all Swiss citizens.

The member states should be enumerated in alphabetical order and not by their official names because it would prevent the states from changing it independently. But another problem arises here, that is to say that it can be not known in the process of constitution adoption what states will join to the federation in its beginning and accordingly what of them should be enumerated in the section General provisions. Here, it is difficult to follow any example because the states that have such provision in their constitutions knew in the moment of the constitution's ratification which states they consisted of. How to solve this problem cannot be easily said. Generally, I believe the best way is to draw up the constitution of the European federal state in that way as if the European federation would involve entire Europe just from the beginning, so that the constitution may not to have to be continually changed in accession of new states. The general principle should be that provisions of the constitution will be such ones, so that they may be satisfactory for great all-European federation; necessary amendments for initial smaller federation will be placed in Final and transitional provisions. I consider such method suitable in other cases (such as of the parliament's size) but not in this case. In my opinion, the best solution is that all current member states of the European union will be enumerated in the opening part of the constitution before the ratification and a provision will be added in Final and transitional provisions that after ratification, the legislative body of the union will be authorized to amend the provision on the member states in that way so that it may correspond to reality. Other future changes of this article will be tied only with admission of new member states and they will demand approval by a referendum.

State constitution contain also a provision about a state capital. Such provision is appropriate also for the European constitution, so that it may not happen (as today) that principal state bodies (a parliament, a government, a supreme court) and even their parts are situated in various, from each other distant towns (present condition in the EU). The question what should be the capital of the European federal state can hardly be answered otherwise then Brussels. There is a building of the European parliament there already and looking for another capital would raise only quarrels.

Let us shift to state symbols now. The decision about the European flag is clear in advance – like in the case of the name also in the case of the flag, it is absolutely suitable what the EU has now; it is unnecessary to invent anything else. UPDATE NOTE: I invented a new flag later - see this.

The question about the coat of arms of the federation is more difficult. As far as I know, nobody dealt with this issue so far. Therefore the question is now what to adopt as a coat of arms of the European federation. It can be a new coat of arms, an old no more used today, it is also possible to transfer the motive from the flag in the coat of arms. If a wholy new coat of arms would be created I do not know what sign should be in it. But I believe the best thing is to adopt a coat of arms already used in the past. The coat of arms I have in mind is the one of extincted Holy Roman Empire – the empire itself ceased to exist and nobody took over its coat of arms, it is therefore free to use. In following picture, there is its shape (small coat of arms, that is to say a mere shield):

Why just this coat of arms? The Holy Roman Empire was an indirect ideological heir of ancient Roman Empire and its effort was to unite whole (western) Christian Europe under its name. It succeeded not but theoretically the supreme rule of Roman kings and emperors over the whole (catholic) Europe was been acknowledged by other European monarchs. The Holy Roman Empire can therefore be seen as an attempt of its kind to unite Europe in the middle and early new ages and the objection is not sufficient that it was an imperial project whereas the European federation project is base on voluntary cooperation.

A question on a third usual state symbol, an anthem, is not too difficult. Here, it is the best to take over the present musical symbol of the EU, part of Beethoven's Ode to Joy, but with a modification. The modification consist in adding a text and in labeling the anthemn by a name, following examples of present states anthems. In the federal constitution would be only the name of the anthemn (probably "Joy of brothers") and its exact reading (melody, text) would by determined by a separate constitutional law. My opinion is the text should come out of the original Schiller's poem (Ode to Joy, Ode an die Freude), should not depart of it too much and should be written in a neutral language which is probably only Latin in Europe now. My provisional, temporaly idea (to be adapted) is as follows:

1. Laetitia, tu scintilla,

unitatis filia,

a te gaudemus accensi,

caelestia gaudia.

|: Tua venustas jungit nos

qui fuimus divisi,

Europaei fiunt fratres,

laetitia affecti. :|

2. Cui contigit facere

amico se amicum,

desine solus restare,

delecteris nobiscum!

|: Nunc una anima sumus,

communis Europae grex,

et qui non vult congaudere,

flens maneat devius. :|

Also the “Day of Europe”, May 9^th, in memory to Robert Schuman's speech in Paris in 1951, is considered to be a symbol of Europe. There are not many memorable days in constitutions, maybe it is very exceptional because I found only one example (in Swiss constitution in article 110, there is a provision about August, the 1st as a federal national holiday). Despite of it the Europe Day can be in the European constitution, no problem with it can raise. The best reading of this will be “The national holiday is the Day of Europe, May 9^th, and other days determined by the law.”

Because there are also other state symbols except the mentioned (for example state colours, state seal, presidential flag and so on), it is appropriate to leave their enumeration and form to the legislators.

There is another thing mentioned in some constitutions in their opening parts – a state or official language. But there are many different national languages in Europe and none of them is common for all Europeans and intelligible for all of them; maybe except of English but it is not a neutral language – today, English is a working language, but it is something different. Too many fights would be over this issue, so it is better to omit it in the constitution; moreover, such by a language homogeneous federation like the USA has no provision about the state/official language, Europe also needs not any – it excludes not a chance Europe will agree on a suitable language someday.

In the end, how the section General provisions in my opinion should run (apology for the imperfect heraldic and vexillological terminology in English which I do not know):

1. The European Union is a democratic federal state based on the will of the people. The people is the only source of state power.

2. The European Union is composed of states Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Nederlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom.
3. The capital of the European Union is the Federal Region of Brussels.
4. (a) The state symbols of the European Union are state coat of arms, state flag, state anthem and other state symbols determined by a law;
(b) the state coat of arms of the European Union is the shield or, on it double-headed eagle displayed sable with nimbuses or over its heads;
(c) the state flag of the European Union is a yellow banner with a red cross in it and a circle of twelve yellow five-pointed stars round the cross' center on a blue circle put under the cross' limbs;
(d) the state anthem of the European Union is the Joy of brothers;
(e) the national holiday of the European Union is the Day of Europe, May 9^th, and other days determined by a law;

(f) the law will provide details of the form and use of the symbols of the Union.

Preamble

Not every state's constitution has a preamble in the beginning. Nothing urges Europe to have any preamble in its federal constitution, but the two greatest patterns for the European federal constitution, the constitution of the United States of America and the constitution of Switzerland, begin with a preamble. A preamble is a solemn introductory statement bringing general ideas of the following text and circumstances of its origin. The preamble of the constitution can be useful in that it clarifies the sense and the objective of the provisions done in the constitution. In other words, the concrete provisions should be seen as an implementation of the preamble and the preamble can thus convey the spirit of the constitution.

So what should the preamble of the European federal constitution involve? Three things in my opinion: why the constitution is given (reasons for the federal arrangement of Europe), who gives the constitution and what its provisions should provide.

Why the constitution is given – these should be reasons why a federation in Europe. In fact, it should be something like a history lesson. So: suggestions for a unification of Europe have been presented for centuries already and they have had many in common – they called for peace in Europe, for the securing of human rights, for the creation of uniform economic area as a means of welfare, against fall of Europe's importance in the world, against supremacy of a foreign power in Europe. These issues should be reflected in the preamble of the federal constitution because all of them had their not small importance in Europe's history. The entire history of Europe is filled by smaller or (in the course of time) grater wars and these armed conflicts were largely the main cause of suggestions how to prevent them by unification of European states. But Europeans did not want hear out the suggestions until they came to two-staged civil war (usually entitled as world wars) which extensively devastated Europe. And also another prediction took place then – Europe was divided and subjected to alien powers (the Soviet union and the United states of America). The power of Europe and its influence in the world was past (in fact, has been, few has changed to now). The division of Europe into separate hostile states led also to the rise of totalitarian and undemocratic, mostly aggressive state regimes, especially in armistice time of the European civil war. Those regimes not only unleashed wars with other states but also demolished lives of their own citizens, committed crimes reminded up to this day that could not be prevented by divided Europe and quarrelled with each other. Next, the hostile division of Europe led not only to a two-phase great war but due to it also to a great demolition of material goods, to a damage of many artistic works and historical relics, to a demolition of industrial capabilities and a fall of the people living standard. Europe even needed an external economic aid to survive (the Marshall plan). So a declaration should be present in the Preamble that Europeans are aware of prior division and of its adverse consequences together with a manifestation of a will to disallow a repetition of history – political and economic.

Who will give the constitution – it will be written by only few, three or four, words in it, in spite of that it can cause a controversy. Should the first words of the constitution sound “we, the people of Europe” or “we, the peoples of Europe” or “we, the states or Europe” or “we, the people and the states of Europe”? Though it can be seen as irrelevant, in fact, it has its importance. The question who brought the European federal constitution and who built up the federal authorities is not unimportant for future legal disputes about the power of the federal bodies (indeed, supreme courts of some states adjudged in some cases according to the constitution preambles). In the case it will be a controversy about an extent of the federal bodies competencies towards the states' competencies, the provision that the people of Europe was who has given itself the federal constitution will have a crucial importance for the federal constitutional institutions – the competencies of the federal bodies are derived from the federal constitution given by the people, not from the power of the member states, so the member states will not be able to restrict or to change the power of the federation. The rise of the federation is due to the will of the European people, not due to the states – it can be claimed if the constitution contain the words “we, the people of Europe”. “We, the states of Europe” is a declaration quite contrary to an intent to establish a strong federation. It suffices to observe how the power of states causes a weak position of the present EU. What about “we, the peoples of Europe”? Thus similar it is written in the preamble of in a comment to my first article in this blog mentioned draft of the European federal constitution (“We, the peoples of the European Union”). But this declaration is in an ideological conflict with a concept of a federal union. If one European federal state should be established, all European peoples act in that case as one people, for the federal state all are its one people. The peoples – that sounds as if the peoples (die Nazionen) only gathered together but not united itself, like in the present EU. Nobody says the diversity of European peoples has to be erased, but an union of Europe cannot be based on the peoples but the people. “We, the peoples establish the Union” is something insane like “we, the citizens of villages and towns establish the state of …” If we look in the constitution of the United states of America, we find there bright “we the people of the United states of America”. On the other hand, after opening the federal constitution of Switzerland, you can read “Das Schweizervolk und die Kantone” (“the Swiss people and the states”). Somebody can hold it suitable to imitate in the whole Europe (“we the European people and (our) states”) but despite of that it is already written in some constitution (of Switzerland) I do not consider it suitable. The words about the states can be seen as a useful measure for a guarantee the (present) states will not be destroyed by the federation. But such fears are quite needless, the federation cannot destroy the existence of its member states, it depends only on their peoples and it is even contradictory to the principles of federalism. The states may be (beside the people) mentioned in the Swiss constitution but Switzerland is something else than the whole Europe; because in Europe the states were the main cause of wars and inhuman crimes, it is not proper to name the states in European federal constitution. - although the federation should not destroy the states, it should struggle to overcome division of Europe in states.

What the constitution should provide result from the first: why constitution is given. So the things are providing peace and democracy, safeguarding the independence of Europe, setting Europe again an example for the world, promoting the common welfare, preserving cultural and national diversity. These are the general objectives, the other ones which can be conceived are involved in the previous ones such as a struggle for intact environment (common welfare). In my opinion, the one more thing should be mentioned in the preamble – perpetuity of the union. The union will provide neither peace nor democracy nor the common welfare nor the other named matters if it could disintegrate any time. But I will comment more this thing in other place later in an article dedicated to general provisions.

Yet another thing I can refer to – a religion. Almost everyone knows the European Convention disputed about that the Christianity heritage should be mentioned in the preamble of a (so called) European constitution. But what for? Today, the Christianity is a private thing of every person and none and nothing will take it out from it, the European federal constitution being no exception. It may be admitted that the God appears in the Swiss constitution in the words “im Namen Gottes des Allmächtigen!” (“in the name of Almighty God!”). So, the Swiss people is strongly religious. But so do (and always did) the people of the United states of America and look at the preamble of their constitution – the religion is absolutely absent. While the Americans was already at that time religious we must suppose that the absenting religion in the constitution's preamble is an expression of a fact the religion cannot be commingled with politics. And we in Europe should do the same.

I should summarize in the end, so I express my notion about a shape of the preamble. Here it is:

We, the people of Europe,

conscious of prior division and dissensions sequent on it;
conscious of prior tyrannies which brought about the worst suffering and destruction in history;
striving therefore for a permanent union
that will ensure peace, democracy, mutual solidarity,
that will ensure liberty for its people,
that will promote the common welfare through social justice,
that will preserve its diversity,
that will preserve natural environment,

adopt this Constitution of the European Union.

Adoption of the constitution

The adoption of the constitution is the only matter discussed here that will not be explicitly written in the constitution. But it means not it is less important. The main thing that cannot be passed and that has to sound first is: the constitution has to be approved by the people in a direct vote, a plebiscite. A meaning of this is double: The first is the question of democracy - the constitution is a thing which will regulate the life of the society and therefore it is very important thing that cannot be adopted without people; not in vain it is usually written in constitutions something like "the people is the source of all power". The second meaning of the direct vote is that the people will identify itself with the European federation much more if it adopt the constitution itself than if the constitution is adopted by some politicians distant of the people (like in present EU).

But this is the easier matter to be solved. There is more difficult question here, namely who will prepare a proposal of the constitution and what people will have an occasion to vote about it. I begin with the second one - the people of only selected European states should decide on it through the popular vote or the whole people of all EU member states should do it? I am inclined to the possibility that the plebiscite about the federal constitution should be open to the people of all current member states so that no European nation could not say it was neglected from the very beginning. The principle let be: the European federation will be established in (only) that states of Europe whose people will approve its constitution in a plebiscite. This seems to be simple; but there is one great problem with that - if the vote about the constitution should be open to the people of all present EU member states, the adoption-of-the-constitution process should be also open for them. However I doubt it is possible establish some sort of constituent assembly representing by own elected delegates all EU member states and adopt a true federal constitution in it. Antifederal movement (though maybe unorganized) is not strongest but exists and in the moment the election to the constituent assembly is proclaimed, many of these antifederalists will be sure elected - in the case the assembly would something like the former European Convention. (I do not mention a possibility of an assembly established by the national governments and their representatives - they do not want European federation at all, maybe apart from the German or Be-Ne-Lux governments.)

The precedent we have at hand - the Convention on the Future of Europe held 2002-2003. This Convention was composed first of all by delegates of the national parliaments and governments (beside the delegates of the EU Commission and the European Parliament) - despite the fact that the European federation seemed a matter of close future to some people at that time, the members of the Convention managed to do nothing more than to prepare a summary of then valid intergovernmental treaties, that is a new intergovernmental treaty. The adopted treaty (proposal) had nothing to do with a constitution (let alone federal) and its name "Treaty establishing a Constitution for Europe" is an exhibition of impudence. So let us establish new constituent assembly open to everybody and I fear we will come to something similar. The assembly that should adopt a federal constitution has to consist of representatives of people elected directly by it. I do not know however a way how to prohibit antifederalists and so called Eurosceptics to be elected to it. I bet you they would be elected if such an assembly is proposed.

Afterwards, there are also other ways. As you can read at http://www.euraction.org/lett/readen.htm (and not only there), in the present European union there are six states which have advanced more far than other European states in their integration and which are highly homogeneous, closely interdependent economically and socially, and in which (what is very important for our matter) the European idea is strongly rooted in public opinion. These six states are a core of the EU and can be a core of the newly constituted European federation; these are Belgium, France, Germany, Italy, Luxembourg and the United Kingdom (no, I am only joking, naturally the Netherlands). As the politicians (though not all) of these countries are close in the idea of the European federation and as most suggestions on European integration came just from this area, it is possible to elect the constituent assembly only in these six states and the constitution proposal to submit to the popular vote (plebiscite) also only in these six states. The success of the adoption of the constitution and by it of the establish European federation is in such case much more likely. But I do not know how to justify that only this states would proceed separately from the others. Naturally every European state (I mean its people by these words) can accede to this initially only by six states established federation in future and this has to be known to all Europe already in the moment of the proclaiming the constituent assembly and the vote to it, but the assembly cannot be established without a compliance of the governments of appropriate countries. For how to organize a vote to an assembly in any state without the will of its government? Can the vote be organized as a popular activity without an intervention of the state government? I doubt any European government would watch inactively the people would hold some activity without it (the government) that would heavily influence the future of the state it govern. So it has to be banked on that the constituent assembly cannot be established and work without the compliance of the governments of that states where the representatives to the assembly will be elected. But you know the way things are in the present EU - six governments will declare its will to permit the establishing the constituent assembly, next European Council (the summit of all EU member governments) will convene and other "non core" governments will want either to join to the assembly (in their state the citizens also would vote to it) or to defeat it as a danger (for the whole EU, for them, for the citizens and their freedoms, for the European nations and their identities or anything similar they will make up) or as a technically unrealisable thing or they will state it will not be yet time to realize it. Maybe I am a great pessimist but I am not able to imagine six national governments will declare they really will let convene a constituent assembly, adopt the federal constitution by it, let their citizens to vote about it, let their states accede to newly established federation, and the other national governments will only watch and say "we will let you act as you want and will only observe if you succeed". I believe there is another way besides how to obtain the federal constitution - to miss out the stage of the constituent assembly, to prepare the text of the constitution in the federalist circles throughout Europe and the governments only ask for the organizing the popular vote (plebiscite) about it. Thus the danger could be bypassed the antifederalist members of the constituent assembly would prevent the adoption of a federal constitution or they would like to adopt a constitution not truly federal but something like international treaty such as was the case of current Treaty establishing a Constitution for Europe. Despite of that the people of the European (EU) states will in every case vote about the federal constitution however way its proposal will be adopted, I am not sure this way is enough democratic. The main objective is the successful adoption of the federal constitution and establishing the European federation and there is the question how much the end can justify the means. What is your opinion to the possibilities?